In Vlaming v. West Point School Board, a former teacher’s lawsuit was given new life at the Supreme Court of Virginia.[1] The teacher, Peter Vlaming, alleged that his former employer, the West Point School Board, had breached his employment contract and violated his rights under the Virgina Constitution and the Virginia Religious Freedom Restoration Act. The Supreme Court of Virginia found his allegations to be plausible, reversed the lower court’s dismissal of the case, and remanded for further proceedings. . Because Vlaming brought only state law claims, the opinion provides significant guidance on the interpretation of religious freedom and free speech rights under the Virginia Constitution and Virginia RFRA.

As alleged, after teaching French at West Point High School for six years, Peter Vlaming was terminated for refusing to refer to a biologically female student, referred to in litigation as “John Doe,” by male pronouns in support of that student’s gender transition.[2] Vlaming had referred to the student by Doe’s chosen masculine French name and avoided using third-person pronouns when referring to Doe. Vlaming explained to school administrators that affirmatively using male pronouns would “violate his conscience” because he “holds religious and philosophical convictions” that require him to use the pronouns associated with an individual’s biological sex.[3] The school principal informed Vlaming that his “personal religious beliefs end at the school door,” and that he “was required to use masculine pronouns to refer to Doe.”[4] When Vlaming accidentally referred to Doe as “her” on one occasion shortly thereafter, he was suspended and ultimately terminated for “discrimination and harassment based on gender identity.”[5]

Vlaming filed a complaint in Virginia circuit court against the school board and several administrators asserting free-exercise, free-speech, due-process, and breach-of-contract claims under the Constitution of Virginia, Virginia statutes, and Virginia contract law.[6] The circuit court sustained the school board defendants’ demurrer against all claims and all defendants except for Vlaming’s breach-of-contract claim against the school board.[7] Vlaming appealed to the Supreme Court of Virginia.

Writing for the majority, Justice D. Arthur Kelsey reversed the demurrer and remanded to the circuit court with an order to reinstate all Vlaming’s claims against all defendants.[8] First, the court held that Vlaming had adequately pled a free-exercise claim under Article I, Section 16 of the Constitution of Virginia.[9] The court noted that this state constitutional provision’s protections for religious liberty are far more “fulsome” than those available under the U.S. Constitution,[10] rejected the applicability of Employment Division v. Smith to Virginia claims,[11] and held that the Constitution of Virginia protects any expression of religious exercise that does not constitute an “overt act[] against peace and good order.”[12]

Second, the court held that Vlaming adequately pled a Virginia RFRA claim.[13] After noting that Virginia RFRA has slightly lower burdens of proof in some respects when compared with the federal RFRA—namely, that the state government need not “prove that its contested actions be ‘essential’ to the furtherance of ‘a compelling governmental interest,’” and need not meet “a heightened standard of evidentiary proof”—the opinion further noted that Virginia RFRA, like the federal RFRA, requires the ”exceptionally demanding” standard of “least-restrictive means.”[14] The court reinstated Vlaming’s Virginia RFRA claim, noting that compelling him to speak in violation of his conscience was unlikely to be the least restrictive means available to achieve the government’s stated interest. [15] The court also cabined an exception to Virginia RFRA that allows the government to “maintain[] health, safety, security or discipline.”[16] The court declined to “demark with specificity the conceptual boundaries” of the exception; instead, it held that no matter its scope, it would not forbid Vlaming’s actions in this case of “avoid[ing] the use of any third-person pronouns, and refus[ing] to use the government-mandated pronouns.”[17]

Third, the court resurrected Vlaming’s free speech claims asserted under Article 1, Section 12 of the Constitution of Virginia because he alleged that the school board imposed a compelled-speech requirement.[18] The court observed that Virginia’s protections for free speech are “at least as strong as” those in the U.S. Constitution.[19] It relied on U.S. Supreme Court precedents like 303 Creative v. Elenis,[20] Wooley v. Maynard,[21] and Janus v. AFSCME[22] to establish the baseline principle that “the government has a higher burden to justify compelled speech than when it seeks to punish or censor protected speech.”[23] The court further held that free-speech protections are available to “secondary-school teachers” as well as “students” and “university professors.”[24] Because the “coerced masculine pronouns had nothing to do with any curricular topic related to” Vlaming’s classroom instruction, but were instead used “as ‘an instrument for fostering public adherence to an ideological point of view,’” Vlaming adequately pled a viable free speech claim.[25]

Fourth, the court agreed that Vlaming had also adequately pled a due process violation under Article I, Section 11 of the Virginia Constitution, which “parallels the procedural due-process protections in the Fifth and Fourteenth Amendments to the United States Constitution.”[26] The court held that the school board policies enforced against Vlaming failed to provide him adequate notice and were thus unconstitutionally vague because they neither mentioned “the use or nonuse of pronouns” nor mandated “the use of only government-approved pronouns for transgender students.”[27]

-Fifth, and finally, the court held that Vlaming pled a viable claim for breach of his employment contract, which only permitted termination for good cause. Vlaming’s refusal to use the pronouns prescribed by the administration was the grounds for his termination. Given the new holding that this refusal was protected by the Virginia Constitution and Virginia RFRA, the school board lacked good cause to fire him.[28]

Justice Cleo E. Powell, joined by Chief Justice S. Bernard Goodwyn, concurred in part to the majority opinion. They disagreed with the majority’s contention that the limiting principle for free exercise claims under the Virginia Constitution is whether religious exercise constitutes “overt acts against peace and good order.”[29] They would instead have applied “traditional strict scrutiny as expressed in Sherbert v. Verner.”[30]

Justice Thomas P. Mann, joined by Chief Justice Goodwyn and Justice Powell as to all his analyses except his discussion of religious exercise and breach of contract, concurred in part and dissented in part. Justice Mann agreed that the circuit court erred in dismissing Vlaming’s free exercise claim, but he would have applied a lower standard of review; specifically he would only apply “strict scrutiny” to “non-neutral laws.”[31] Justice Mann agreed that the school board violated Virginia RFRA, but he would not have opined on the “essentiality” requirement and the standard of proof under Virginia RFRA because neither were disputed in this litigation.[32] Justice Mann disagreed with the majority that Vlaming adequately stated a cause of action for either his free speech claims or his due process claims. On free speech, he would have held that Vlaming’s speech was “both curricular and part of Vlaming’s official duties as a French teacher,” and that it was thus “squarely within the purview of speech the School Board could legally regulate.”[33] On due process, Justice Mann opined that “the School Board clearly and unambiguously informed Vlaming that his conduct was prohibited, undertook a lengthy investigative process, and conducted a public hearing,” and that he was thus afforded adequate procedural protections.[34] Finally, Justice Mann agreed with the majority that the breach of employment contract claim was adequately stated, but solely because of Vlaming’s free exercise and Virginia RFRA claims, not because of his free speech and due process claims.[35]


[1] Vlaming v. W. Point Sch. Bd., 895 S.E.2d 705 (Va. 2023).

[2] Id. at 712–14.

[3] Id. at 713.

[4] Id. at 714.

[5] Id. at 714–15.

[6] Id. at 715.

[7] Id.

[8] Id. at 713.

[9] Id. at 724.

[10] Id. at 717.

[11] Id. at 717–20 (discussing Emp. Div., Dep't of Hum. Res. of Or. v. Smith, 494 U.S. 872 (1990)).

[12] Vlaming, 895 S.E.2d at 722.

[13] Id. at 734.

[14] Id. at 735 (cleaned up).

[15] Id.

[16] VA Code Ann. § 57-2.02(B).

[17] Vlaming, 895 S.E.2d at 736.

[18] Id. at 737.

[19] Id.

[20] 303 Creative LLC v. Elenis, 600 U.S. 570 (2023).

[21] Wooley v. Maynard, 430 U.S. 705 (1977).

[22] Janus v. Am. Fed’n of State, Cnty., & Mun. Emps. Council 31, 138 S. Ct. 2448 (2018).

[23] Vlaming, 895 S.E.2d at 739.

[24] Id.

[25] Id. at 739–40 (quoting Wooley, 430 U.S. at 715); id. at 743.

[26] Vlaming, 895 S.E.2d001 at 743.

[27] Id. at 744.

[28] Id. at 747.

[29] Id. at 749 (Powell, J., concurring in part).

[30] Id. (citing Sherbert v. Verner, 374 U.S. 398, 406–09 (1963)).

[31] Vlaming, 895 S.E.2d at 758 (Mann, J., concurring in part and dissenting in part).

[32] Id. at 771.

[33] Id.

[34] Id. at 782.

[35] Id.

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